1. Sir Henry Sumner Maine, Popular Government (London: John Murray, 1886), 253.

2. C. Ellis Stevens, Sources of the Constitution of the United States, Considered in Relation to Colonial and English History (New York: Macmillan, 1894), xi. Stevens also argues that “it is beginning to be realized [contra the enthusiasts of an American radical democracy, the local disciples of Rousseau] that the Constitution of the United States, though possessing elements of novelty, is not, after all, what this [radical idea of an invention ex nihilo] would imply. It is not, properly speaking, the original composition of one body of men, nor the outcome of one definite epoch, . . . it is better than that. It does not stand in historical isolation, free of antecedents. It rests upon very old principles worked out by long ages of constitutional struggle. It looks back to the annals of the colonies and of the motherland for its sources and explanation” (vi–viii).

3. Sir Herbert Butterfield, The Englishman and His History (Camden, Conn.: Archon Books, 1970), 128–29.

4. Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986), 35–37, 156–84, 397–98.

5. For a summary of these British influences on our fundamental law, see Margaret A. Banks, “Drafting the American Constitution: Attitudes in the Philadelphia Convention towards the British System of Government,” The American Journal of Legal History 10, no. 1 (1966): 15–33. For a partial documentation of this inheritance, one may examine the appropriate passages in Philip B. Kurland and Ralph Lerner, ed., The Founders’ Constitution, 5 vols. (Chicago: University of Chicago Press, 1987).

6. Quoted in Max Radin, “The Myth of Magna Carta,” Harvard Law Review 60, no. 7 (1947): 1060.

7. Butterfield, The Englishman and His History, 58. Butterfield’s gloss is derivative of Lord Coke’s sixth edition (London: N.p., 1681), 45–47.

8. On Burke and the “Debates on the Canada Act,” see the Times, 7 May 1791; and Parliamentary History, 24:365–66. Also see Carl B. Cone, Burke and the Nature of Politics: The Age of the French Revolution (Lexington: University of Kentucky Press, 1964), 81.

9. David S. Lovejoy, The Glorious Revolution in America (Middletown, Conn.: Wesleyan University Press, 1987); see also Lovejoy’s “Two American Revolutions, 1689–1776,” in Three British Revolutions: 1641, 1688, 1776, ed. J. G. A. Pocock (Princeton: Princeton University Press, 1980), 244–62. The great merit of the Pocock book (and especially of the Robert Ashton essay, “Tradition and Innovation and the Great Rebellion,” which it includes [208–23]), is the way in which it brings home to us the retrospective continuity of Anglo-American legal history, reaching back so far as the time of Edward the Confessor.

10. Doris M. Stenton, After Runnymede: Magna Carta in the Middle Ages (Charlottesville: University of Virginia Press, 1964), 40.

11. See The Debates in the Several State Conventions of the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia, in 1787, ed. Jonathan Elliot, 5 vols. (New York: J. B. Lippincott, 1876), 3:170.

12. See Paul H. Smith, ed., Letters of Delegates to Congress, 1774–1784 (Washington, D.C.: Library of Congress, 1976), 1:52–53 (speech of 8 September 1774).

13. Quoted in Founders’ Constitution 1:671.

14. Quoted in Frank Monaghan, John Jay: Defender of Liberty (New York: Bobbs-Merrill, 1935), 58.

15. George Dangerfield, Chancellor Robert R. Livingston of New York, 1746–1813 (New York: Harcourt, Brace, 1960), 82.

16. For language concerning “reconciliation . . . on constitutional principles,” see Richard Morris, ed., John Jay: The Making of a Revolutionary: Unpublished Papers, 1745–1780 (New York: Harper and Row, 1975), 200.

17. John Drayton, Memoirs of the American Revolution, From Its Commencement to the Year 1776, 2 vols. (Charleston: A. E. Miller, 1821), 1:260–61. I have commented previously on the constitutionalism of William Henry Drayton in A Better Guide Than Reason: Studies in the American Revolution (La Salle, Ill.: Sherwood Sugden and Co., 1979), 111–33.

18. See John Mays, Edmund Pendleton, 1721–1803 (Cambridge: Harvard University Press, 1952), 1:357.

19. See Griffith J. McCree, The Life and Correspondence of James Iredell (New York: D. Appleton and Co., 1859), 1:136.

20. Letters for 11 February 1784 and 23 February 1786, preserved in State Archives, Raleigh, North Carolina.

21. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), 18.

22. See Forrest McDonald, Novus Ordo Seclorum (Lawrence: University Press of Kansas, 1985), 81–85, 209–13.

23. Zoltan Horaszti, John Adams and the Prophets of Progress (New York: Grosset and Dunlap, 1964), 28.

24. See Gordon Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 11: “No Government that ever existed, was so essentially free.” See also 575–86. Adams is quoted as saying in 1775 that the “British constitution is nothing more nor less than a republic, in which the king is first magistrate” (206).

25. James Madison, Notes of Debate in the Federal Convention of 1787 (Athens: Ohio University Press, 1966), 447. Madison quotes Dickinson as declaring, “It was not reason that discovered [this mechanism].” Experience takes the place of reason.

26. Ibid., 184.

27. Ibid., 46.

28. McDonald, Novus Ordo Seclorum, 209; in James Madison, no. 56 of The Federalist, ed. Jacob E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961), 382, Madison speaks of the “experience of Great Britain which presents to mankind so many political lessons . . . [as] frequently consulted in the course of these inquiries.”

29. See William Henry Drayton, A Letter from Freeman of South Carolina to Deputies of North America, Assembled in the High Court of Congress in Philadelphia (Charlestown: Peter Timothy, 1774), 20, 24: “Magna Carta is such a fellow that he will have no other sovereign.” See also Stephen D. White, Sir Edward Coke and the “Grievances of the Commonwealth,” 1621–1628 (Chapel Hill: University of North Carolina Press, 1979), 267. The quotation is an echo of debates in the Parliament of 1628 leading up to the Petition of Right.

30. For a comparison of royal and republican executives in Madison’s Notes, see James Wilson, 46, 252, 444; Pierce Butler, 63, 113; Gouverneur Morris, 319, 335–36, 360, 373; George Mason, 64; Benjamin Franklin, 64; James Madison, 80, 305; and Roger Sherman, 527. For a sample of analogies of Parliament, see George Mason, 177, 252; Gunning Bedford, 229; and Roger Sherman, 399.

31. Madison, Notes, 82; the same comparison is made by Oliver Ellsworth (223), Edmund Randolph (436), and George Mason (443).

32. Ellis Sandoz, “The American Constitutional Order after Two Centuries: Concluding Reflections,” Social Science Quarterly 68 (December 1987): 724–44.

33. Elliot, Debates in the Several State Conventions 3:170, 174.

34. Ibid., 53–54.

35. Ibid., 450–51, 219. Henry Lee argues from the ability of Parliament to contend with a king that Congress will be able to prevent executive tyranny (43).

36. Ibid., 4:354.

37. George C. Rogers Jr., Evolution of a Federalist: William Loughton Smith of Charleston, 1758–1812 (Columbia: University of South Carolina Press, 1962), 157–58.

38. Sir William Holdsworth, The History of English Law, 17 vols. (London: Methuen and Co., 1938), 11:137. Holdsworth adds remarks to the effect that talk of the “equality of men, their inalienable rights . . . , [though] such theories might be suited to a period of revolution, [was] of very little help in a period of reconstruction.” See also Sir William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago: University of Chicago Press, 1979), 1:91, 237, for an idea of the British constitution contrary to the one suggested in Dr. Bonham’s case. Blackstone declares, “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.” Yet he denies that Parliament is free to exercise a “power precarious and impracticable.”

39. Kammen, A Machine That Would Go of Itself, 156–84; especially A. V. Dicey, Lord Acton, Walter Bagehot, Sir Henry Lunn, Lord Bryce, and William E. H. Lecky.

40. Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 201–3.

M. E. Bradford

BYU Studies Publications